1 March 2011

Justiciary? Supreme? Hyslop's is/ought guddle...

There are a number of stratagems which the villainous might devise to trample over the integrity of ancient Scottish institutions and impose Union-uniformity where once flourished independence and diversity. Making those plans generally available by publishing them freely online does not, I dare say, cut a particularly Machiavellian caper when it comes to the sensitive art of Union statecraft. It robs the mischief of all finesse. It suspends suspense.

The ballyhoo blew up yesterday in the Herald, who reported that Jim Wallace, the Westminster coalition's Advocate General for Scotland, had made a sleekit, secret attempt to end appeals in Scots courts. The report strongly suggested that the former deputy First Minister was attempting give the UK Supreme Court a substantial general jurisdiction over Scots criminal cases and thereby making the UK court a truly supreme tribunal, the awkward snag represented by the High Court of Justiciary being smoothed out. Implied was the idea the Wallace would invite UK Supreme Court Justices to examine the substance of the Scots criminal law and scrutinise whether convictions amounted to miscarriages of justice. That understanding seems to have gained significant outraged purchase.

Such a proposal would surely cause a juridical scandal, prompting clouds of powder to choke Parliament House as legal periwigs were dislodged by the collective paroxysm which would seize the doughty inheritors of Scotland's feudal legal establishment. The daisies would be knocked from the grass, as all of Edinburgh's ancient lawyers reeled in their tombs. The SNP put out a warmly worded press release on Wallace's "disrespect for Scots Law" to this effect, with Stewart Maxwell MSP furnishing the quoteables. The sense of suddenness and change was reinforced by last night's BBC Newsnicht, who devoted the second half of the programme to the issue. Unhappily, the programme's opening report on the issue didn't assist understanding by a few untidy juxtapositions and vague assertions. I'll come to these later. More broadly, you may be wondering what is the truth of the matter? What is Jim Wallace really about? What substantial changes would this proposal effect, if any, to the status quo under the Scotland Act 1998? I thought it would be beneficial to set out clearly but accessibly what the background legal situation is here and what is being proposed. For my part, I propose to leave the wider normative and political questions aside, at least for the moment. Once we have these legal details more clearly in mind, a more informed view can then be taken about the propriety or objectionableness of these proposals, in particular whether characterisation of them as a "huge transfer of constitutional powers" can really be justified.

Firstly, these "secret" clauses...

The "secrecy" element of the charge against him is rendered a little daft by a quick squint through the Advocate General for Scotland's website. On the 24th of September 2010, the Advocate General announced an informal consultation "concerning the way in which acts of the Lord Advocate in her capacity as head of the system of prosecutions might give rise to devolution issues under the Scotland Act". The SNP Cabinet Secretary for Justice, Kenny MacAskill, actually responded to this consultation, for heavens sake. In addition to soliciting responses, he appointed an Expert Group to look into the question, under the chairmanship of Sir David Edward. This group published its reasoned conclusions on the question on the 11th of November 2010. The findings of the group have thus been freely available to anyone with the will, a computer and a search engine - for months. Yesterday's resort to the blinky, blind-sided language of shock and awe is thus palpably rubbish.

The Advocate-General's proposals...

Citing the Expert Group's report, the Advocate-General notes that the Westminster Government intends to make amendments to the Scotland Bill to affect the following changes to the Scotland Act 1998. It is the second which has prompted the present outbreak of anxiety...

• Remove acts of the Lord Advocate in her capacity as head of criminal prosecutions and investigation of deaths in Scotland that are incompatible with any rights conferred by the European Convention on Human Rights that are given effect to by the Human Rights Act 1998 (“Convention rights”) or Community law from the ambit of section 57(2) of the Scotland Act; and

• Create a statutory right of appeal from the High Court of Justiciary sitting as a criminal appeal court to the Supreme Court in relation to matters where it is alleged that the Lord Advocate has acted incompatibly with any such Convention right or Community law to replace the existing devolution issue procedure that currently applies in such cases. The jurisdiction of the Supreme Court should be maintained both for reasons of constitutional propriety and, more importantly, to ensure that fundamental rights enshrined in international obligations are secured in a consistent manner for all those who claim their protection in the United Kingdom.

Which means what, precisely? To understand that, we have to delve just a little into the jurisdiction of the UK Supreme Court which obtains at present.

The status quo: the Lord Advocate and the Scotland Act 1998

To understand what the Advocate-General is proposing, it is crucial to keep the current structure of the Scotland Act 1998 in mind. I'm conscious that this is a bit arcane, but all will hopefully become clear. At present, the 1998 Act provides that:

§ 57(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.

Critically, the "Scottish Executive" is defined as including the Lord Advocate, the chief Scottish prosecutor (in §44(1)(c)). While § 57(3) makes some exceptions to this general rule, insofar as it binds the Lord Advocate, we may skip past these to emphasise the fundamental point that the Lord Advocate acts beyond her powers if her actions actions are not in conformity with the UK's Convention obligations. In legalese, they are rendered ultra vires by their incompatibility with the European Convention, void, non-operative. Under Schedule 6, this question of "whether a purported or proposed exercise of a function" by the Lord Advocate "would be, incompatible with any of the Convention rights or with Community law" is styled a "devolution issue". When the Scotland Bill was passed in 1998, a body called the Judicial Committee of the Privy Council was given final jurisdiction over these "devolution issues". All we need note for the moment is that that jurisdiction has now passed to the UK Supreme Court. The central point is this. By dint of these sections of the Scotland Act 1998, the UK Supreme Court acquired a measure of jurisdiction over Scottish criminal matters, albeit one limited to the compatibility of the actions of the Lord Advocate with the European Convention on Human Rights. Such jurisdiction has already existed for more than a decade.

Where BBC Newsnicht got it wrong...

I'll focus on two points in particular. The journo noted that "the UK Supreme Court can already decided on civil cases" - wholly accurate - but then gave the wholly erroneous impression that the Court's Cadder v. H.M. Advocate decision occurred as a result of this civil appeal stream. This is not the case. As Lord Hope noted at the very outset of his judgment in Cadder...

"This is, in effect, an appeal against the decision of the High Court of Justiciary in HM Advocate v McLean [2009] HCJAC 97, 2010 SLT 73, which was heard by a bench of seven judges. The link between that case and the appeal is that the minuter in that case and the appellant, Peter Cadder, in this were both detained under section 14 of the Criminal Procedure (Scotland) Act 1995, as amended (“the 1995 Act”). This has given rise, in both cases, to the question whether the Crown’s reliance on admissions made by a detainee during his detention while being interviewed by the police without access to legal advice before the interview begins is incompatible with his right to a fair trial."

Secondly, Newsnicht noted that the proposed changes "would make the [Scottish] prosecuting authorities subject to the Human Rights Act". This too implies that they are not already subject to that Act. They are. The crucial difference in Scotland - and the Lord Advocate's double bind - are the existing provisions of the Scotland Act, quoted in full above. At present, if the Lord Advocate acts contrary to the European Convention, it is not only "unlawful" under the Human Rights Act, but ultra vires under the Scotland Act. Here is where things get a bit knotty. Compatibility of acts of the Lord Advocate with the Convention constitutes a devolvution issue, and can thus already be entertained by the Supreme Court. By contrast, no appeal stream currently exists from Justiciary to Supreme Court under the Human Rights Act. As the Expert Group notes, if acts of the Lord Advocate as head of Scots criminal prosecutions were excluded from section 57 of the Scotland Act as the Advocate General proposes, then the compatibility of her acts with the Convention would only be reviewable in Scotland, under the Human Rights Act, by the High Court of Justiciary. The UK Supreme Court would be excluded. Citing ideas of constitutional propiety and the even application of Convention standards across the UK, the Advocate General and his Expert Group believe that there should be a supplementary appeal mechanism to the Supreme Court, albeit one limited, as at present, to the compatibility of actions of the Lord Advocate with the Convention. Fundamentally, as regards the jurisdiction of the Supreme Court over Scottish criminal cases, this is the status quo, reconfigured. There is no question of awarding a general jurisdiction over Scots criminal cases to the UK Supreme Court, as some have been suggesting. Indeed the Group explicitly suggests (in paragraph 4.27), of the proposed mechanism:

"... in our opinion, it would be preferable ... to substitute a self-standing provision that would make explicit, and put beyond down, the nature and limits of the jurisdiction of the Supreme Court in relation to criminal proceedings, and (if necessary) the investigation of deaths, in Scotland. This should make it clear that the purpose of the jurisdiction is (and is only) to ensure compliance with the international obligations of the United Kingdom with particular reference to Convention rights and EU law."

So what is the SNP's position?

Fiona Hyslop's performance on Newsnicht yesterday contributed to the rather bizarre situation where the discussion is dominated by disgruntlement with the UK Supreme Court's Cadder decision of last year, yet the impression is given that to give the Supreme Court any role would be an outrageous novelty, a sapping innovation, a fundamental shift in relationship between Scots criminal courts and the UK Supreme Court. I've you've manfully chipped through the earlier passages, you'll realise that this is bunk and is clearly bunk.

I respect the desire to be vigilant in the defence of Scotland's independent legal system. However, we should very clearly distinguish (a) the law as it is from (b) the broad political project which seeks to advance the idea that Scots Law should be thoroughly independent and that all final domestic appeals should be heard in Scottish fora, whether in the Court of Session for civil matters, or in the High Court of Justiciary, in concerns criminal. Failing to do so has produced this Scottish Ministerial guddle, turning a perfectly respectable and supportable constitutional position into what is - I'm sorry - naked disinformation. As the foregoing has made clear, the UK Supreme Court inherited a jurisdiction over the decisions of the High Court of Justiciary on Convention compatibility of the Lord Advocate's acts with devolution, more than a decade ago. The Advocate General's proposals concern (a) how such a jurisdiction should be defined and (b) whether as chief public prosecutor, the Lord Advocate should be subject to the Scotland Act's vires limits on acts of Scottish Ministers. The dire warnings that yesterday's developments represent a fundamental shift in the relationship between the High Court of Justiciary and the Supreme Court is clearly confected, or marvellously ignorant. Because of this commingling of is and ought, unfortunately we have not focussed on the properly political questions underpinning the Advocate General's proposals.

In particular, the idea that such an appeal mechanism to the Supreme Court is entailed by ideas of constitutional propriety and a uniform application of European human rights standards doesn't strike me as particularly convincing or necessary. After all, courts across 47 distinct jurisdictions in the Council of Europe have to contend with the judgments of the European Court of Human Rights. Similarly, the application of the Convention in the UK isn't uniform anyway, with Scottish devolved institutions generally being held to a higher standard of observation than English equivalents by the Scotland Act. The mute presence throughout the Expert Report - unsurprisingly enough - is a legal Unionism fundamentally unsympathetic to the SNP view that all Scottish legal actions should find their domestic conclusions in Scotland. Those Unionistic basic premises should not surprise and are hardly concealed. I've written before about how the foundation of the new UK Supreme Court, whatever its powers, has been treated as a fruitful opportunity to inscribe a much more explicitly Unionist semiotics on the institution itself, a project taken up in recent months by the media. The SNP is right to resist this approach and I believe correctly holds the position that severing such ties with UK institutions within devolution contributes to the broader gradualist strategy to emphasise Scottish self-sufficiency, reducing apprehensions about the leap from membership of the Union to independent state. Such a cause is not, I'd submit, assisted by the sort of shrill inaccuracy we've seen Hyslop and Maxwell touting in recent days. The issue is surely obscure enough without ruddy herringmongers lobbing whiffy distortions about. Focus on the ought questions about Scots Law, to be sure, but be sure to get the is questions right.

9 comments
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It's not entirely over-reaction, VOO. I respectfully submit that LPW is correct in his general assertion that this has been handled in a pig-ignorant fashion by the media (and Ms Hyslop - but, hey, barn doors and banjoes...) but there are a couple of points worth examining.

First, it is true that what the AG is proposing seems to be largely a replacement for the existing devolution issue procedures. But these aren't exactly time-hallowed, having been in force for less than 12 years. And during that brief dozen years they have been a pestilential plook on the peachy bahookie of Scots law. From the Union till 1999 the HoL couldn't interfere in Scots criminal cases at all. Then suddenly they and their successors could. Nor is this a matter of arcane, esoteric little-used pinhead choreography: as the AG himself notes, there have been 10,000 devolution minutes raised in that time. So these proposals are a bad innovation replacing another bad innovation.

Secondly there's the hole-and-corner aspect. The Expert Group reported to the AG in November. Their report was NOT published then, despite LPW's assertion. It was published together with the AG's response, on 31 January, long after discussions on the Scotland Bill were well under way. And we know from the Official Report of the Scotland Bill Committee of 8 February that there is a draft Scotland Bill clause to give effect to the AG's proposals out there. But interrogate Mr Google as you will; you won't find it. It appears to be secret. It may be good, bad or indifferent, but LPW can't apply his brain to it because it's not there. Now it would be nice to think there had been an outbreak of good faith among the UK Government and its unionist lickspittles - as the Expert Group undoubtedly were - but the continuing secrecy on this issue favours the view that it's nefarious business as usual.

I agree, there are certainly choices and politics at work here. Plenty. As will be plain, the main thrust of this post was to clear up the nonsense and put the proposed changes in their context. A whole post could be dedicated to the substantial question - should such a mechanism of appeal exist at all? Should the High Court of Justiciary not enjoy domestic supremacy? For evidence of which, it is worth looking in detail at the critical submission made by the Scottish Law Commission in response to the Advocate General's informal consultation. As I note in the main piece, I'm thoroughly unconvinced by the case for this procedure - which draws its lifeblood, I'd suggest, from a political desire to cement the structures of the Union. It may be worth adding that one could, of course, be a Unionist and still find other reasons to entertain doubts about the propriety or usefulness of this appeal mechanism to the Supreme Court.

Your point about the date of publication of the Expert Group report is potentially well taken. In the compressed time I had to compose this bit of writing, I simply noted when the report was finalised. Of course, that is not necessarily the date it becomes publicly available. I'll have to look into it to confirm your date - and amend the piece to reflect my mistake. That said, the difference is not, perhaps, substantial. A month's free availability online doesn't do much for the cause of secrecy either. Equally, I totally accept your second point. The actual text of the proposed amendments to the Scotland Bill are not publicly available.

AF - there may have been 10,000 devolution minutes. There have not been 10,000 appeals to the Supreme Court on devolution issues. Most are disposed of by the High Court. The right of appeal (unlike that in civil cases) is not virtually automatic (requiring a couple of signatures).

As for the secrecy of the amendments. The policy is overt. Clauses which are amending bills that are in parliament already are rarely (if ever) published until they are laid. What matters is the policy and whether or not that is express. The drafting of provisions can involve various commenters and is attempt to firm up policy. Is there any point in publishing an early draft clause which is still subject to internal review, and in this case comment from Sc Govt, UK govt lawyers, policy makers (and which will no doubt be run past the judges and other interested groups)? Once the clause is laid it will then have to be approved by both HOuses of Parliament - and will be subject to the line by line scrutiny that amendments at Holyrood often do not benefit from.

There are policy questions here, about the desirability of the appeal but to present this as London judges when in the key Scottish criminal cases decided by SCUK the two leading Scottish lawyers of their generation have sat, and been in the majority in each case (indeed, they have only ever disagreed on one case which was a legislative competence issue) does a disservice to the policy arguments - by presenting this as something which it is not.

Thanks for the considered response, LAG. I hope I can abuse LPW’s hospitality to examine this further!

I hope I didn’t give the impression I imagined all 10,000 devolution minutes led to court action. Clearly they don’t: though presumably someone in the AG’s office has to examine them all, and that won’t be without a cost. The point is that the fertile minds of lawyers have managed to stretch the applicability of the devolution issue procedure a long way. As LPW points out, there was support from individuals and organisations associated with the defence trade for the devolution issue procedure. You may think that for defence lawyers arguing before the UK Supreme Court is something of a dripping roast formerly denied them: I couldn’t possibly comment! Though if I did it would be something along the lines of nemo judex in causa sua…At any rate you cannot know how simple or complicated the appeal procedure might be, unless you have more privileged access to the mind of the AG than do I. The details of the mechanism are not available.

I will take your word for it that the UK Government doesn’t usually publish clauses before they are tabled. But I think you overestimate the amount of scrutiny this is likely now to get. It can hardly be an “early draft”. Amendments are already being tabled, and as I understand it consideration will start very soon. I do know that if the Scottish Government were going to do something important, such as change the colour of tags in cows’ ears, they would be expected to consult for 12 weeks, generally with draft Regulations. I am sure the 12-week consultation applies in Whitehall as well.

And it is here where the date of the publication of the soi-disant Expert Group report is important. The BBC website’s report initially quoted the AG’s spokesman as saying this had been published in November. This was quite simply untrue, and the amended version of the BBC site has removed this statement. This did not stop John McTernan making the same mendacious claim in his rodomontade in the Hoot this morning. If the Expert Group really did report in November, as the published version suggests, it hung about the AG’s desk for months until he published it, with his response, on 31 January. And, with all due respect to LPW, there is a great deal of difference between getting one month to comment on a major proposed change instead of three, especially in the context of the usual rule of 12 weeks for consultations I mention above. And if I might remind LPW, what he said of this in commenting on Tales from Middlesex Guildhall was “I really can't be doing with these neat, elite, depoliticisation strategies”…

I know, in my sober moments, that cock-up is vastly more common than conspiracy. I also know that the problems with the devolution issue procedure have been known for years, certainly since Somerville. Indeed the judges of the Court of Session submitted material on this issue to the Calman Commission, which promptly body-swerved it. It was to the credit of this AG that he has set about doing something on this issue, which his Labour predecessors ignored. Unfortunately, the use of untruths to defend the proposals not only by journalistic chippy-shouldered dilettantes like Mr McTernan, but even by the AG’s spokesman himself, does rather chip away at one’s cheery optimism.

There is a distinction between SIs with a statutory consultation period and primary legislation. Ridiculous I know - but amendments made within Holyrood or Westminster are not published and publicly consulted on in advance. They are laid and then debated within Parliament. This happened, for example, on the Crofting Bill at Holyrood last year where much of the initial superstructure of the bill was (rightly I think) replaced with a more coherent system by amendment at stage 2. However, there was no prior publication there, no consultation on the drafts, and in some cases only a weekend for consideration by MSPs (and those advising them) before being debated by the Parliament at Stage 2 (and no return to the topic at Stage 3) - and at Stage 3 more than 100 amendments were laid with scrutiny of a couple of minutes per provision. That wouldn't happen at Westminster where there would generally be fuller debate on individual provisions.

I think that Parliament would benefit from an evidence session after the bill has been amended to allow interest groups to respond to the bill as revised, but I appear to plough a lonely furrow in advocating that.

I am not sure about the date of publication. I have been aware of the proposals for some time - but cannot recall if I came across this through a public source, or a work related private source. I wonder if it is possible to identify exactly when it was published on-line (or when the summary of recommendation was made public).

The Cadder decision is certainly the pachyderm in the corner - in large part because the unanimous UK Supreme Court differed so radically from the High Court of Justiciary in its interpretation of what minimum standard the European Court and Convention might require. As I noted in a further piece on this issue today, one should not overstate the clarity of Strasbourg's judgments. That said, Scotland would not be unusual in having domestic courts uniformly taking one view - while Strasbourg took another. My sense is that appeals from Justiciary to the European Court would have a more salutary effect on our Senators of the College of Justice than being gubbed by two former Lords Justice General.

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